Parental responsibility - Poland

TABLE OF CONTENTS

What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

2.

As a general rule, who has the parental responsibility over a child?

3.

If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

4.

If the parents divorce or split up, how is the question of parental responsibility determined for the future?

5.

If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

6.

If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

7.

If the parents go to court, what issues can the judge decide upon relating to the child?

8.

If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

9.

If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

10.

To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

11.

Which procedure applies in these cases? Is an emergency procedure available?

12.

Can I obtain legal aid to cover the costs of the procedure?

13.

Is it possible to appeal against a decision on parental responsibility?

14.

In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I seize in such cases and which procedure applies?

15.

What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in Poland?

16.

To which court should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

17.

Which law does the court apply in a proceeding on parental responsibility where the child or the parties who do not live in Poland or are of different nationality?

1. What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

There is no definition of parental authority (responsibility) in the Polish Family and Guardianship Code. In general terms, parental authority (responsibility) may be defined as a set of obligations and rights of parents in respect of a minor child, the aim of which is to provide proper care and protection of the child’s interests.

Parental authority arises ex lege at the moment a child is born and lasts until a child comes of age, i.e. until he/she is 18 years old (with some exceptions).

A person in charge of parental authority is under the obligation to take care of a child, to bring him/her up, to care about his/her physical and mental health, education, as well as to represent a child and administer his/her property.

2. As a general rule, who has the parental responsibility over a child?

Parental authority shall be exercised by both parents, regardless if they are married to each other or not, if they live together or not, etc.

Only in a situation when paternity to a child has been established by a court, a father shall be eligible for exercising parental authority only if a court grants it to him by a decision establishing paternity. If one of the parents is deceased or has a diminished capacity to act, or if he/she has been deprived of parental authority or he/she has been suspended in exercising parental authority, then the other parent shall be in charge of parental authority. If paternity to a child has not been established, then only the mother shall be eligible for parental authority.

3. If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

If none of the parents is eligible for parental authority, e.g. as a result of being deprived of parental authority due to its improper exercise, or lack of exercise, a child shall have a person in custody of him/her appointed.

4. If the parents divorce or split up, how is the question of parental responsibility determined for the future?

If the parents divorce or split up, the question of parental authority shall be subject to a court’s decision.

5. If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

The Polish law does not provide for the possibility of concluding an agreement of this kind.

6. If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

There is a possibility of mediation, yet it shall be carried out by a guardianship court. This court may send parents to a family terapy, organised by various social or non-governmental organisations , etc.

7. If the parents go to court, what issues can the judge decide upon relating to the child?

There is a provision, which stipulates that both parents jointly shall decide in vital questions concerning the child. If they fail to come to an agreement, these issues shall be decided upon by a guardianship court. There is no list of issues considered vital. Jurisprudence suggests that these vital issues can be as follows: a child’s domicile, the choice of school, the decision concerning a child’s first name and surname, decisions concerning a child’s medical treatment, departures abroad.

A maintenance case is not a guardianship case. Obviously, if one of the parents does not provide maintenance to a child, the other parent has a right to bring action in a court to have maintenance awarded.

8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

No, the fact that one of the parents exercise single custody of a child does not mean that the other parent shall be deprived of the right to co-decide about vital matters relating to the child.

9. If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

Only parents that live together may have joint custody of a child. If the parents do not live together, only one of them shall be awarded custody of a child. The other parent shall preserve his/her right to contact the child freely, as well as his/her full parental authority. There is a distinction between the notion of having custody and the notion of exercising parental authority.

10. To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

Cases relating to parental authority fall within competence of district courts (‘rejonowy’) – family and juvenile cases divisions (a guardianship court) , competent on the grounds of a child’s domicile.

One should lodge an application and attach to it a child’s birth certificate, parent’s marriage certificate (if they are married to each other) , other documents in support of the application, e.g. medical certificates, school certificates, pedagogues’ opinions, etc.

Proceedings before a guardianship court in cases relating to parental authority are free of charge. Moreover, in justified cases parents may obtain a free of charge legal representation of a lawyer.

13. Is it possible to appeal against a decision on parental responsibility?

Yes, any decision may be subject to an appeal lodged in a higher instance court.

14. In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I seize in such cases and which procedure applies?

Proceedings in relation with the enforcement under compulsion of a decision concerning parental authority shall be carried on by the same court that had issued the original decision. The person concerned should lodge a suitable application in the court. The proceedings shall run pursuant to the provisions of the Polish Code of Civil Procedure.

15. What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in Poland?

Poland is a party to the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, done in Luxembourg on 20 May 1980

Thus, a relevant application should be lodged in a court.

When Poland accedes to the European Union, the provisions of the EC law shall be applicable in this regard.

16. To which court should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

These cases shall be heard in the proceedings in appeal by the Appellate Court, which is superior to the court that had issued the decision concerning the recognition of a foreign court’s judgement. The provisions of the Code of Civil Procedure shall be applied.

17. Which law does the court apply in a proceeding on parental responsibility where the child or the parties who do not live in Poland or are of different nationality?

The law of a child’s home state, in accordance with Article 19 of the Act of 12 November 1965 – Private International Law, shall be the applicable law.

Moreover, Poland is a party to The Hague Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors, which permits the possibility of applying the law of the state in which a minor person is domiciled.